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James Mather
James Mather,
Category: Property Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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I took out a 10 year lease with break clause at 2015 in October

Customer Question

I took out a 10 year lease with break clause at 2015 in October 2010 to open a Gym and Martial Arts Studio above a High Street shop.
In the 1st quarter 2012 the Landlord built an entire new floor above us whilst we were trading. It was an understatement to say that this was stressful and substantially interfered with our enjoyment of the leasehold!
Again in the 1st and 2nd quarter 2013’s trading was totally disrupted with the fit out of the new floor above as a Hot Yoga studio.
Immediately as the Hot Yoga Studio commenced operation with temperatures approaching 40.5C some 10 days ago, the temperature in our studio (directly below) began to rocket by at least 0.4C per day. It is currently 30C and still rising at that rate, causing distress and discomfort to us and our customers.
I have raised this matter with the landlord. He claims it is hot weather, not the yoga studio, and even if it is the yoga studio, he has no intention of insulating the floor above us or installing air-conditioning, and on three occasions he has admonished me to leave if I don’t find that acceptable. He is being intimidating and derogatory towards me in a manner that leaves me in no doubt that he is harassing to evict us.
We have been substantially interfered with in being able to benefit from the leaseholding whilst these two major periods of works have been on going, and are now unable to benefit from continuing to trade as the cost of installing the air-conditioning required to balance the heat from the ceiling will be prohibitively expensive. As well it will not be economic or prudent to as if the landlord is harassing to evict us now he will not hesitate to use the break clause in 2015.
We are not in rent arears. We were aware that he was planning to build above us, but we did not find out until after the construction that a Hot Yoga studio was going to be the tenant. The Landlord has revealed that he was in discussion with the Hot Yoga Company before we took our lease.
What is the realistic case for damages and how much could we claim in the county court for derogation from grant, breach of covenant for quiet enjoyment and constructive eviction?
Submitted: 4 years ago.
Category: Property Law
Expert:  James Mather replied 4 years ago.

Hello, I am Law
Denning and I am a practising solicitor in a High Street practice. I have been
an expert on this website in UK law since 2008. During that time, as you
appreciate, I have answered thousands of questions from satisfied users on a
variety of subjects.

we are all in practice with clients and court and other users, I might not always respond in minutes,
particularly evenings and weekends. Please bear with me in that case

It is my pleasure to try and assist you with this today. Please bear with me
while I gather some further information from you in order for me to be able to
advise you fully.


Is this heat indeed coming from upstairs? What proof do you have of that?

The reason I ask, is that heat rises so you wouldn't normally feel it downstairs

Customer: replied 4 years ago.

Many thanks for considering my question.

I have been tracking the temperatures with a digital thermometer and Ipod weather date stamp.


I am not sure that I can upload a graph (I tried), but if you graph these values you will see that there was an event on the 28th June (when the studio opened) and since then the temperature is rising at a very even rate without any correlation to the weather.


The studio is remarkably hotter, if our members are anything to go by, and more than a few will put pen to paper to witness the rise in heat and upheaval caused by the construction and fit out.


Studio TempMaxMinDate



Expert:  James Mather replied 4 years ago.

We are
having heat at the moment and we had heat the first two weeks of June.

But I
don't think that in the period from 26 June until about 4 July the ambient
temperature rose inordinately.

the table, I honestly don't think you've got enough figures to convince a court..yet.

would be necessary (the table is not particularly easy to follow) to chart the
ambient air temperature from the Met office weather site over the last month
and then Interpolate the ambient temperature in the studio, along with the
dates that the Yoga business has been working.

course, in winter, this will be a bonus, but unfortunately, in summer it is a

need to wait until the outside temperature drops (which, knowing Great Britain,
will not be long!) and then see if the temperature in the studio drops.

that you do come up with a table that would be sufficient to convince a court
that this rise in temperature to a completely (in my opinion) unacceptable
level is attributable to the other business, then you can seek an injunction to
stop them doing this and for compensation for any lost business (very difficult
to quantify).

claim against the other business is in common law Private nuisance and possible
breach of the terms of their lease, which presumably says that they've not got
to cause any problems or be of any annoyance to other users in the building.

can also do the same against the landlord because he is allowing it to happen.

is no legal reason why you cannot do this yourself. However, there is no reason
why you cannot take your own appendix out. This is something however, which is
going to be better dealt with by a solicitor. Before going to see a solicitor.
You need to make sure that you have all your evidence in place. I would also
get an environmental type expert to look at the figures that you have regard to
the dates and the temperatures and to visit the building, and to give an
opinion on where this heat is coming from.

get me wrong, I am of the same opinion as you are, that this heat was becoming
via upstairs and perhaps it is actually heating the bricks of the building up,
and that is then being transmitted to your premises. The expert needs to put
temperature probes onto the walls and ceiling to see if the heat is being
transmitted that way.

somebody could use a thermal imaging camera, which would show the extra
ordinary heat coming from this building (and from your part of that building)
compared to other buildings in the vicinity.

than face court and the application for an injunction and costs, the landlord
may be agreeable to let you terminate the lease but that may not be a viable
option depending on the availability of the premises and depending on the cost
of moving. One thing about moving is that unlike a court application, provided
the landlord consents, it is risk-free. There is always a risk if you go to
court and you could face substantial legal costs if for any reason you lose.

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Customer: replied 4 years ago.

"What is the realistic case for damages and how much could we claim in the county court for derogation from grant, breach of covenant for quiet enjoyment and constructive eviction?" (The original question.)

I am clear that I would need an expert testimony to justify the heat source, and the possible methods to get this, I am being advised by a surveyor.

You appear to be advising that I would do best to go along with the landlord's constructive eviction?
As you rightly anticipated the costs of moving, storage (because inevitably we will not be able to find new premises overnight) as well the £100k that we have sunk into this, the facts that we have no other source of income and are less than 3 substantially interfered with years into a 10 year lease, which has now gone rancid, all point to that being a seriously damaging position to have to resort to.
This is why I am seeking an answer to my original question.
I also attach a graphwhich I believe is self-evidentiary in describing the substantial interference.

Expert:  James Mather replied 4 years ago.

is nothing attached but I accept that you have evidence how this is caused.

I don't
think this could be constructive eviction quite simply because you have
produced no evidence (to me at any rate) that the landlord wants you stop.

may have no alternative but to move it only becomes constructive if the
landlord is engineering your move. The end result is the same. The reason is

cost of damages would be the amount right acquired you back the position had
this problem not occurred. You are not supposed to come out of it with a
windfall so there would be the cost of moving, storage, lost business etc. You
are going to need a forensic accountant to put together a schedule of loss. You
can add something in for discomfort and inconvenience.

difficulty you have proving loss is that you have (it would appear) no historic
trading figures to rely on unless you have traded somewhere else.

your business insurance to see if you have legal expense cover would cover the
cost of litigation because this claim would not be risk-free and it would not
be cheap if you lost for any reason.

Can I
answer any further specific questions?